Joel Stewart on PERM Labor Certification

When PERM applications are denied, employers can file requests for reconsideration to the Certifying Officer in Atlanta or requests for review (appeals) directly to the office of Administrative Law Judges in Washington, DC. The judges adjudicate decisions collectively under the aegis “Board of Alien Labor Certification Appeals” (BALCA). If a reconsideration is denied by the Certifying Officer, employers can still file an appeal to BALCA within 30 days.

In addition to the requirement of timely filing, employers must carefully state the grounds for the appeal. A directive from BALCA advises that appeals may be dismissed if the grounds do not contain sufficient detail.

Appeals may consist of a statement of position or a brief. While no definitions of these terms are provided in the PERM Rule, the phrase “statement of position” seems to encourage employers who do not have legal representation to file appeals in which they may make arguments in layman’s terms, while attorneys may be expected to prepare legal briefs.

Both statements and briefs must satisfy the requirements set forth in the Board’s one-page 1988 decision, North American Printing, 88-INA-42. The decision states, “The request for review shall…set forth the particular grounds for the request.”

An example of inadequate grounds might state simply that the Certifying Officer ignored the law, or that the law is unfair, or that the denial was unreasonable. None of these would not constitute particular grounds.

However, if an employer states that the denial violates a specific section of the PERM Rule and why, the Board would then have proper notice about the employer’s particular grounds for appeal.

An important issue to be aware of is that appeals cannot include arguments that are not already in the record at the time of the denial or reconsideration. When DOL issues an audit, the employer must address all the audit issues in its response. If the application is then denied, the employer may not introduce new documentation in its request for reconsideration, unless there was no opportunity to provide the documentation prior to the denial. This may occur when the DOL gives a reason for denial that was not previously stated in the audit letter.

Furthermore, if an employer does not respond to all the issues in an audit and then tries to file a request for reconsideration or appeal to make arguments that it neglected to include in the response to the audit, it is barred from raising any new issues.

What this means is that an appeal to BALCA is nothing more than a review of the record file and not an opportunity to introduce new facts or legal arguments. Notwithstanding these narrowly defined appeal procedures, the Board has often made decisions favorable to employers for meritorious cases.
A checklist for appeal along this basis might include the following: (1) Is there any information or documentation missing from the record file that the Board is unaware of? (2) Did the DOL raise an issue in denial to which the employer did not previously have an opportunity to respond? (3) Did the DOL abuse its discretion in issuing a denial without sufficient cause? (4) Was there a misunderstanding arising from an inadequacy of the PERM form 9089? (5) Has the DOL misapplied the law? (6) Does the denial shock the conscience? (7) Is the law itself vague, ambiguous or unreasonable? (8) Was the Employer unable to provide information requested for good cause? (9) Was the audit language vague or ambiguous so that no reasonable person could understand itsexact meaning? (10) Was the denial based on simple typographical errors that did not affect the search for US workers?

Since PERM appeals are very strictly construed, the best strategy is to avoid appeals entirely. Employers should always follow the regulations carefully and bear in mind that even most typographical errors can result in irreversible denials.